In any divorce case involving minor children, there are many issues that must be considered. One of these is the matter of making decisions regarding the children’s welfare. Ideally, the parents will work cooperatively after they’ve divorced to do what is necessary to advance the best interests of the children. In the real world, things can often be more complicated. Nevertheless, the law demands that divorcing parents strive to work together and share parental decision-making responsibilities in most cases. In a recent case decided by the Second District Court of Appeal, a trial judge’s order giving the mother “ultimate” authority was thrown out because the case didn’t meet the standard for awarding something other than true shared responsibility.

This case from the Tampa Bay area involved the children of M.C., the father, and K.C., the mother. In deciding child custody and timesharing as part of the couple’s divorce case, the court gave the mother 75% timesharing and the father 25%. The court also declared that the parents would have “shared decision-making responsibility,” but it then also ruled that the mother would possess “ultimate decision-making authority.”

The father appealed, and he won on the issue of decision-making authority. Under Florida law, the phrase “shared decision-making responsibility” has a definite and specific meaning. It means that, when the occasion arises to make a substantial decision regarding the well-being of the child, that decision should come as a result of the parents’ conferring and mutually reaching an agreement. In this case, though, the court, by giving the mother ultimate authority, essentially negated the shared part of that process. The mother could simply refuse to reach agreements with the father and fall back upon her court-issued trump card of ultimate authority. In such a dynamic, the parents would not truly share equally the responsibility of making decisions about the child’s welfare.

There are some cases in which it is appropriate for the court to issue an order that gives one parent ultimate decision-making authority. One of those scenarios involves a situation in which one parent has such a long and pervasive history of uncooperative and obstinate behavior regarding the process of making decisions about the child’s welfare that giving the other parent the “final word” is appropriate to protect the child’s best interests.

In this case, there was a history of acrimony, but the father’s past behavior did not rise to the level of severity needed to justify giving the mother the final say. The father “demonstrated less ability to cooperate” than the mother, but that was not enough. The evidence in this case did not show that the father had an extensive history of uncooperative behavior, which the law required. Also, the trial court had already made findings that both parents were completely capable of co-parenting the child and that, generally, the father’s bad behavior was mostly relegated to “personal problems” between him and the mother. In that situation, awarding anything other than truly shared responsibility was improper.

Even if these other evidentiary and factual problems hadn’t existed, there was another flaw with giving the mother ultimate authority in this case. An award of ultimate authority is inherently something other than shared parental responsibility. Section 61.13(2)(c)(2) of the Florida Statutes says that shared parental responsibility should be the default option in all cases, and something other than shared responsibility should only be awarded after the trial court has concluded (and made explicit findings) that awarding shared responsibility would be detrimental to the child. In this case, there was no finding that shared responsibility would be detrimental to this child.

In a divorce case, child custody issues may be the most important aspect of your litigation to you. In order to ensure that you get an outcome that works for your family, reach out to the South Florida child custody attorneys at Sandy T. Fox, P.A. Our attorneys have been helping families deal with the law and the courts for many years and are here to help you. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.